Under the Ontario Human Rights Code (the “Code”), employers are prohibited from discriminating against employees based on several enumerated grounds. While traditionally discrimination is understood as differential treatment based on the enumerated grounds outlined in the Code, there are forms of discrimination that are less straightforward, and there are instances where employers refuse to accommodate employee disabilities.
Failure To Accommodate Discrimination
When an employee discloses a valid human rights need relating to their workplace, an employer is obligated under the Code to accommodate that employee’s human rights to the point of undue hardship. Failure to accommodate the employee’s human rights to the point of undue hardship constitutes discrimination in breach of the Code, opening an employer to risk for a human rights application being commenced against them that could result in significant legal fees and damages.
What Is Undue Hardship?
What constitutes “undue hardship” is a contextual and factual analysis that considers relevant factors to determine how far an employer needs to go to accommodate an employee’s human rights in the workplace.
The factors to determine undue hardship include the cost of accommodating an employee, what outside sources of funding there are to accommodate the employee and balancing human rights with workplace health and safety concerns. Issues like business inconvenience and employee morale are not valid considerations to determine what constitutes undue hardship.
The standard of how far an employer must go to accommodate an employee’s human rights can therefore vary from workplace to workplace. It is important that each employer perform a reasonable and objective assessment of what can be done to maximize the employee’s accommodations and minimize the undue hardship on themselves.
What Constitutes A Disability Under the Code?
One of the most common enumerated grounds for which employees seek accommodation in their workplace is disability. If an employee discloses a properly documented disability requiring workplace accommodation to their employer, or if the employer otherwise ought to reasonably be aware of an employee’s disability requiring accommodation, the duty to accommodate the employee to the point of undue hardship is engaged.
When Can An Employer Refuse to Accommodate An Employee’s Disability?
When an employer cannot reasonably accommodate the employee without significant costs or without being able to balance the employee’s needs with workplace health and safety concerns, they have the basis to refuse to accommodate an employee’s disability under the Code.
If an employer considered accommodation for the employee honestly, reasonably, and objectively, but cannot feasibly accommodate the employee’s disability, then the employer has not failed to accommodate the employee by refusing to do so. This would require the employer to actively gather only as much information as necessary from the employee and attempt to accommodate the employee until all reasonable efforts to do so have been exhausted.
An employer can also refuse to accommodate an employee’s disability if the employee fails to disclose evidence to confirm their disability in need of accommodation. Employers are only entitled to ask for medical information that confirms the employee’s disability, not any details that are unnecessary to assess how it may accommodate the employee.
A medical note confirming an employee’s need for workplace accommodation relating to a disability is ordinarily enough for an employer to be expected accommodate, but every case is context specific and there may be situations that require that an employee disclose more information. An employer is expected to act reasonably and inquire for medical documents if none are provided by the employee to substantiate their disability before refusing to accommodate the employee.
Employers should consult an employment lawyer to determine what steps to take before refusing to accommodate an employee’s disability. Not seeking such advice could result in significant legal fees and damages owing for discrimination in breach of the Code.
Contact Us
If you are an employer who is seeking information about accommodating an employee’s disability, or an employee who is seeking accommodations for their disability in the workplace, our team of experienced legal professionals can help. Contact us by phone toll-free at 1 (866)508-2548 or email us at info@achkarlaw.com and we would be happy to assist.
If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions. If you are looking for legal support for HR, visit our HR Legal Support page.
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